EXHIBIT 10.12
CONSULTING AGREEMENT
The following Consulting Agreement is made between North Country Bank
and Trust (the "Bank") and X. Xxxxxxxxxx Consulting, LLC ("Consultant"),
effective as of January 15, 2003.
1. SCOPE OF WORK. Consultant will assist the Bank, as requested or
directed by the Bank, in strategic, financial, operational and other business
planning related to Bank. Among other things, Consultant will provide specific
assistance in regard to budgeting, financial planning, the establishment of
internal controls, coordination with the Bank's certified public accounting firm
and other advisors, oversight of the accounting function of the Bank,
interaction with regulatory agencies and other similar services.
Consultant agrees to be reasonably available to the Bank to provide the
services described above, provided, however, it is understood that Consultant
will not perform services full-time for the Bank. Consultant shall provide
services as specifically directed by Xxxxxx Xxxxxxxxxx. Specific services and
days of work shall be as agreed upon between the Bank and Consultant.
2. TERM. The term of this Agreement shall be one year from the
effective date. It may be renewed by mutual agreement, or terminated earlier in
accordance with the provisions below.
3. COMPENSATION. Consultant shall be paid a non-refundable fee of
$50,000 upon execution of this Agreement, plus $16,666 per month, plus
reimbursement or reasonable out-of-pocket expenses. Compensation shall be paid
semi-monthly on the 15th day and the last day of the month. Expenses will be
reimbursed within five days of month end, provided that Consultant has by month
end submitted all necessary expense reports required by the Bank. In addition,
the Bank shall provide Consultant with a vehicle reasonably acceptable to
Consultant for use in connection with the performances of services under this
Agreement. The Bank shall be responsible for insuring to vehicle and for
maintenance, repair and fuel. Consultant will reimburse the Bank for personal
mileage in accordance with standard practices of the Bank.
Consultant shall also be reimbursed for legal fees it incurs in
connection with the negotiation and preparation of this Agreement.
4. TERMINATION. This Agreement may be terminated by the Bank at any
time, with or without cause, on not less than thirty (30) days written notice to
Consultant. If terminated by the Bank without cause, at the time of termination
the Bank shall pay to Consultant a severance payment in the amount of $10,000
multiplied by the number of months remaining until January 15, 2004. No other
compensation shall be payable.
If termination by the Bank is for "cause", as defined below, there
shall be no severance compensation. The Company's sole obligation to Consultant
shall be to pay any compensation due for services performed prior to the date of
termination. "Cause" shall be defined as: (i) gross negligence or willful
misconduct by Consultant; (ii) material breach of any provision of this
Agreement by Consultant; or (iii) a substantial conflict of interest.
This Agreement may be terminated at any time by Consultant on not less
than thirty (30) days written notice to the Bank. If the Bank is not in breach
of this Agreement at the time of
such termination, the Bank's only obligation shall be to pay Consultant for fees
earned and expenses incurred through the date of termination.
In all events, upon any termination becoming effective or at the
expiration of the term hereof, whichever first occurs, Consultant shall return
to the Bank the vehicle referred to in Section 3 of this Agreement.
5. NO CONFLICTS AND NON-SOLICITATION. During the term of this Agreement
Consultant agrees not to undertake any work for any other financial institution
that would place Consultant in any type of conflict of interest situation, or
otherwise interfere in any way with Consultant's duties to the Bank.
In addition, Consultant also agrees, during the term of this Agreement
and for a period of one year after the date of termination, that Consultant
shall not, directly or indirectly:
a. solicit any employee, customer or prospective customer of
the Bank for the purpose of causing any such person or business to terminate,
modify or limit its relationship or prospective relationship with the Bank; or
b. use for Consultant's own benefit, any business opportunity
of which Consultant gains knowledge during the scope of services under this
Agreement, without first bringing that opportunity to the attention of the Bank
and giving the Bank the first chance to pursue the opportunity.
6. CONFIDENTIALITY. Consultant shall maintain the absolute
confidentiality of all information provided by the Bank during the course of
this Agreement which is proprietary to the Bank and which is maintained as
confidential by the Bank.
7. INDEMNIFICATION. The Bank shall indemnify and hold harmless
Consultant and its affiliates, members, directors, agents and employees (each
person is referred to as an "Indemnified Person") from all losses, claims,
damages, liabilities and expenses (including reasonable counsel fees and
expenses) to which any of them may become subject arising in any manner out of
the performance by an Indemnified Person of services under this Agreement
(collectively referred to as "Claims"), except for Claims arising in any manner
out of an Indemnified Person's gross negligence or bad faith in performing the
services that are the subject of this Agreement. If the foregoing
indemnification is determined to be unenforceable by a court of competent
jurisdiction or insufficient to hold an Indemnified Person harmless, then the
Bank shall contribute to the amount paid or payable by the Indemnified Person as
a result of such Claim, in such proportion as is appropriate to reflect the
relative benefits received by the Bank under this Agreement as well as the
relative fault of the Bank and Indemnified Person with respect to such Claim,
and any other relevant equitable considerations.
If a claim is made against an Indemnified person for which the Bank is
obligated to provide indemnity, the Indemnified Person shall, promptly upon
learning of the existence of such Claim, notify the Bank of such Claim, but
failure to notify the Bank will not relieve the Bank from any liability which it
may have hereunder or otherwise, except to the extent that such failure
materially prejudices the Bank's rights or ability to defend against any claim
related thereto. If the Bank elects or is requested by such Indemnified person,
the Bank will assume the
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defense of such Claim including the employment of legal counsel reasonably
satisfactory to the Indemnified Person and the payments of the fees and
disbursement of such counsel. In the event, however, such Indemnified Person
reasonably determines that having common counsel would in its reasonable
judgment present such counsel with a conflict of interest or if the Bank fails
to assume the defense of the Claim in a timely manner, then such Indemnified
Person may employee separate counsel to represent and defend it against any such
Claim and the Bank will pay the fees and disbursements of such counsel;
provided, however, that the Bank will not be required to pay the fees and
disbursements of more than one separate counsel for all Indemnified Persons in
any jurisdiction for any single Claim. In any Claim the defense of which the
Bank assumes, the Indemnified Person will have the right to participate in such
litigation and to retain its own counsel at such Indemnified Person's own
expense. The Bank further agrees that it will not settle or compromise or
consent to the entry of any judgment in any pending or threatened Claim in
respect of which indemnification may be sought hereunder (whether or not an
Indemnified Person is a party therein) unless the Bank has given the Indemnified
Person reasonable prior written notice thereof and used all reasonable efforts,
after consultation with the Indemnified Person, to obtain an unconditional
release of each Indemnified Person from all liability arising therefrom.
The rights and obligations of the Bank under this Section 7 shall be in
addition to any rights and obligations the Indemnified Persons may have at
common law or otherwise.
8. RELATIONSHIP OF THE PARTIES. Consultant shall he an independent
contractor to the Bank. This Agreement shall nor create an employer-employee
relationship, joint venture relationship, partnership relationship, or agency
relationship. Consultant shall not hold itself out as an employee, agent, joint
venturer or partner of the Bank. Consultant shall have no authority to make any
contracts, commitments or representations on behalf of the Bank, or to bind the
Bank in any way to any obligation, and Consultant shall not hold itself out as
having any such authority. Consultant shall be solely responsible for its own
taxes and agrees to comply with all federal, state and local laws with respect
to federal, state or local taxation laws, and to indemnify the Bank for any
liability caused as a result of any failure to comply with any such laws.
9. GOVERNING LAW AND FORUM SELECTION. The parties agree that this
Agreement shall be governed by Michigan law, and that Michigan has a reasonable
relationship to the parties, and the subject matter of this Agreement, such that
it is reasonable to apply Michigan law. The parties further agree that any legal
action shall be brought only in the state Circuit Court in the County of Grand
Traverse, Michigan, and in no other forum, and that any action improperly filed
in any other forum shall be transferred to the specified court. The parties
agree that the specified court shall have personal jurisdiction and venue over
the parties, and the subject matter of any controversy.
10. NOTICES. All notices, requests, demands and other communications to
be given to any party hereunder shall be in writing and shall be deemed to have
been duly given when either: (i) personally delivered; (ii) five (5) days after
deposited in the United States mail, certified or registered, return receipt
requested, postage prepaid; (iii) sent by way of a nationally recognized
overnight courier service, including without limitation Federal Express; or (iv)
upon actual receipt by the specific persons identified below upon transmittal by
facsimile addressed to the parties at the below addresses (or at such other
addresses as shall be given in like manner by any party to the others):
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To the Bank: North Country Bank and Trust
0000 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx, President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
email: xxxxxx@xx.xxx
With a copy to: Brandt, Fisher, Xxxxxx & Xxx, P.C.
0000 Xxxx 0xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
email: xxxxxxx@xxxxxxx.xxx
To Consultant: X. Xxxxxxxxxx Consulting, LLC
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Xx.
Telephone: (000) 000-0000
email: xxxxxx0000@xxx.xxx
With a copy to: Xxxxxx & Xxxxxx Attorneys, P.C.
The Michigan Building, Suite 200
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
email: jhemker@howard&xxxxxx.xxx
11. MISCELLANEOUS
a. This Agreement supersedes any prior oral or written
agreements or representations of the parties, and any such understandings,
representations or agreements are merged into this Agreement.
b. This Agreement may not be assigned without prior written
consent of the parties hereto. All covenants and agreements of the parties
contained herein shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, legal representatives and permitted
assigns.
c. Captions and section headings used herein are for
convenience only and are not a part of this Agreement and shall not be used in
construing or interpreting any provision hereof.
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d. In the event of a dispute arising hereunder, the prevailing
party shall be entitled to recover from the non-prevailing party, its expenses,
including reasonable attorney fees, in maintaining any action or other claim to
enforce the provisions of this Agreement.
e. This Agreement may only be amended by a written agreement
signed by all parties hereto.
f. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
Dated: January 15, 2003 NORTH COUNTRY BANK AND TRUST
By: /s/ XXXXXX XXXXXXXXXX
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Xxxxxx Xxxxxxxxxx
Its: President
Dated: January 15, 2003 X. XXXXXXXXXX CONSULTING, LLC
By: /s/ XXXXXXX X. XXXXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxxxx, Xx.
Its: President and Manager
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